THE    POWER 


DUTY  OF  CONGRESS, 


m  RESPECT  TO  SUFFRAGE. 


BY 


ISRAEL  WASHBURN,  JR. 


[AwH  tht   Universaltst   Quarterly  /(»•  January,  1869.] 


BOSTON 

18  69. 


THE    POWER 


DUTY  OF  CONGRESS, 


IN  RESPECT  TO  SUFFRAGE. 


BY 


ISRAEL  WASHBURN,  JR. 


»   » ^    a     >  : 


[Fivm  the  Universcdist  Quarterly  for  January,  1869.] 


BOSTON: 

18  69. 


Ws3 


THE    POWER    AND    DUTY 

or  CONGRESS  IN  RESPECT  TO  SUFERAGE. 


The  popular  elections  having  placed  the  Legislative  and 
Executive  Departments  of  the  government  in  the  hands  of 
the  Republican  party,  it  will  be  its  duty  to  adopt  measures 
for  the  completion  of  the  work  of  reconstruction  at  the  earli- 
est practicable  moment.  There  can  be  no  shirking  of  respon- 
sibility, for  these  Departments  will  be  in  political  agreement, 
and  the  need  is  palpable  and  urgent. 

Of  these  measures,  one,  it  seems  to  us,  is  of  supreme 
importance,  for  it  underlies  all  the  others.  Until  it  shall 
have  been  adopted,  no  question  touching  the  subject  of  recon- 
struction will  allow  itself  to  be  adjusted  and  settled.  We 
refer  of  course  to  the  adoption  of  a  just,  republican,  and  con- 
stitutional rule  of  suffrage.  In  the  nature  of  things,  accept- 
able, permanent  reconstruction  can  be  built  upon  no  other 
foundation,  and  no  provision  in  this  regard  can  be  just  or 
final  which  is  not  in  its  essential  features  impartial,  and  appli- 
cable to  all  the  States  alike.  The  existing  reconstruction 
measures,  so  far  as  they  affect  the  question  of  suffrage,  touch 
but  a  portion  of  the  States.  To  extend  their  operation  to  the 
other  States  by  express  constitutional  amendment  is  impracti- 
cable, at  least  for  years.  And  reconstruction  cannot  wait,  nor 
can  justice  and  peace  —  and  they  need  not.  Tliis  most 
important,  this  vital  question  in  the  work  of  reconstruction 
and  harmony,  may  be  disposed  of  wisely  and  permanently  by 
Congress  (supposing  it  to  l)e  clothed  with  constitutional 
authority  therefor),  by  the  passage  of  a  law  to  the  effect  that 
in  no  State  shall  there  be  made  hereafter  any  discrimination 
between  citizens  on  the  ground  of  color  or  race,  and  that  all 
distinctions  or  discriminations  of  this  character  shall  be  to  all 
intents  and  purposes  inoperative  and  void.  We  said  that 
such  a  law  would  settle  this  question  of  suffrage  wisely  and 
.permanently:  ivisely,wG  believe,  because  it  would  provide  a 


ivi224873 


4  THE  POWER  AND  DUTY  OF  CONGRESS 

uniform  and  republican  basis  of  suffrage  for  all  the  States, 
and  establish  in  the  North,  as  in  the  South,  in  the  loyal,  as 
in  the  lately  rebel,  States,  the  rule  of  impartiality  and  justice. 
It  would  set  at  rest  all  agitation,  not  only  in  such  States  as 
Mississippi  and  Texas,  such  as  Kentucky  and  Maryland,  but, 
also,  in  such  as  Ohio,  Pennsylvania,  New  Jersey,  New  York, 
and  Connecticut,  some  of  which  show  but  little  evidence  of 
disposition  or  ability  to  adjust  this  question  for  themselves  on 
a  ])roper,  republican  basis.  In  all  communities  there  is  to  be 
encountered,  in  dealing  with  this  question,  an  element  of 
ignorance,  prejudice,  and  injustice,  that  can  be  overcome  by 
the  communities  themselves,  if  at  all,  only  by  long  and 
patient  effort  —  by  years  of  discussion  and  agitation.  Perma- 
nently, because  the  States  affected  by  the  present  reconstruc- 
tion measures  would  see  that  the  rule  demanded  of  them  is 
made  applicable  to  every  other  State  as  well.  And  they 
could  not  reasonably  or  decently  object  to  a  principle  so  just 
and  proper  in  itself  when  applied  to  all  the  States  —  to  those 
which  had  lost  no  rights  througli  treason  or  disloyalty,  as  well 
as  to  those  which  had  lost  their  State  organizations  by  their 
action  in  tlie  rebellion.  At  the  same  time  there  can  be  little 
doubt  that  those  loyal  States  which  have  not  heretofore  prac- 
tically recognized  their  obligations,  under  the  Constitution  of 
the  United  States,  to  adjust  their  regulations  in  respect  to  suf 
frage  to  the  princijiles  of  republicanism  (and  whose  neglects 
and  failures  in  this  matter  have  not  as  yet  worked  such  prac- 
tical mischief  and  detriment  as  to  call  forth  the  interposition 
of  Congress),  would  gladly  and  promptly  accept  and  respect 
a  law  which  would  not  only  settle  this  question  in  accordance 
with  what  arc  acknowledged  to  be  the  vital  principles  of 
republicanism,  and  with  the  theory  of  the  government,  but 
would  remove  it  permanently  from  the  arena  of  political  con- 
troversy. Under  the  administration  of  a  President  so  wise, 
prudent,  just  and  firm  as  General  Grant,  the  law  would  be 
executed  so  easily  and  judiciously  that  before  the  expiration 
of  his  term  there  would  remain  neither  the  power  nor  the 
inclination  in  any  of  the  States  to  resist  or  disturb  it.     It 


IN  RESPECT  TO   SUFFRAGE.  5 

would  come  to  be  regarded  as  a  part  of  the  fixed,  fundamen- 
tal policy  of  the  government.  And  if  at  the  expiration  of 
General  Grant's  term  there  should  be  found  in  any  of  the 
States  those  who  would  repeal  this  law,  if  they  had  the  power, 
they  will  consider  and  understand  that  men  who  have  exer- 
cised the  right  of  suffrage  for  four  years,  are  not  easily  to  be 
deprived  of  it.  No  man  in  his  senses  will  believe  that  four 
millions  of  people  who  have  enjoyed  all  the  rights  of  citizen- 
ship for  four  years,  can  have  the  most  vital  of  them  all 
taken  away  in  any  country  in  which  republicanism  has  a 
name  to  exist. 

And  thus  we  arrive  at  the  only  serious  matter  of  contro- 
troversy  in  regard  to  this  question  :  Has  Congress  the  power^ 
under  the  Constitution,  to  pass  a  law  for  the  regulation  of  suf- 
frage in  the  States  in  cases  where  they  have  failed  to  make  regu- 
lations themselves  consistent  with  the  requirements  of  that  instru- 
ment, and  with  the  fundamental  idea  of  the  government  ? 

It  would  be  a  strange  omission,  indeed,  if  the  framers  of 
the  Constitution,  the  organic  law  of  a  government  founded 
upon  the  consent  of  the  governed,  had  left  with  the  several 
States  the  power  in  the  last  resort  to  overthrow  that  govern- 
ment by  establishing  conditions  of  suffrage  which  would 
change  it  to  an  oligarchy.  As  the  State  governments  are  so 
necessary  to  the  working  of  the  general  government,  the 
framers  of  the  Constitution  would  have  wrought  with  less 
than  their  usual  prescience,  if  they  had  left  it  possible  for  the 
States  to  defeat  so  easily  the  operations  and  objects  of  the 
general  government,  as  they  might  do  if  the  power  over  elec- 
tions and  suffrage  had  been  left  exclusively  with  the  States 
themselves.  Had  it  been  so  left,  the  States  might  prescribe 
regulations  that  would  exclude  half  of  the  people  from  the  right 
of  suffrage,  making  their  governments  the  closest  of  aristocra- 
cies. This  would  be  State  Rights  with  a  vengeance.  One 
State  might  be  republican  in  its  spirit  and  polity,  another  oli- 
garchical, and  still  another  essentially  monarchical ;  and  the 
general  government  would  be  but  a  confederation  of  these 
dissimilar  and  conflicting  States,  instead  of  a  Union  govern- 


6  THE   POWER   AND   DUTY   OF   CONGRESS 

ment,  all  the  parts  of  which  are  harmonious  and  repiiMican. 
It  would  be  virtual  secession,  for  an  anti-repulilican  ^^tatc, 
althouo'h  nominally  in  the  Union,  would  not  be  of  the  Union. 

But  there  is  no  such  omission.  The  danger  which  would 
result  from  clothing  the  States  with  the  power  to  determine 
for  themselves  whether  they  would  be  republican,  and  which 
determination  would  be  expressed  in  their  laws  touching  the 
sources  or  elements  of  political  power,  or,  in  other  words, 
regarding  suffrage,  was  foreseen  and  thoroughly  guarded 
against,  as  may  be  seen  b}^  reference  to  the  Constitution,  Art. 
IV.,  Sec.  4,  which  is  as  follows : 

"  The  United  States  shall  guarantee  to  every  State  in  the 
Union  a  republican  form  of  government,  and  shall  ])rotect  each 
of  them  against  invasion  ;  and  on  application  of  the  Legisla- 
ture, or  of  the  executive,  (when  the  Legislature  cannot  be 
convened)  against  domestic  violence." 

Now,  the  Constitution  of  the  United  States,  and  constitu- 
tional laws  of  Congress,  are  the  supreme  laws  of  the  land,  to 
which  State  Constitutions  and  State  laws  must  yield  when 
inconsistent  therewith. 

Congress  has  the  power  to  carry  into  effect  and  make  good 
the  guaranty  mentioned  in  Article  lY.  It  is  contained  in 
Sec.  8,  Art.  I.,  wliich  says  Congress  may  "  make  all  laws 
Avliich  shall  Ije  necessary  and  proper  for  carrying  into  execu- 
tion the  foregoing  })owers,  and  all  other  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States,  or  in 
any  department  or  officer  thereof." 

Here,  then,  appear  two  things :  1.  The  duty  of  the  United 
States  to  guarantee  a  repu])]ican  form  of  government  to  the 
several  States  ;  and,  2.  The  power  of  Congress  to  execute  this 
guaranty.  Does  a  case  arise  for  the  exercise  of  this  power 
when  a  State  excludes  from  the  suffrage  adult  freemen,  born 
upon  the  soil,  and  who  by  the  Constitution  ^and  the  decision 
of  the  highest  Court,  are  American  citizens,  for  the  reason 
that  they  are  of  a  particular  race,  color,  class,  profession,  or 
religious  faith  ?  We  affirm  that  it  docs,  and  that  this  was  the 
special   direction   to   which   this "  gu  uantee "  was   pointed. 


IN   RESPECT  TO   SUFFRAGE.  I 

How  were  State  Governments  expected  to  become  anti-repub- 
lican except  by  changing  tlie  sources  of  political  power,  and 
how  could  this  so  readily  be  done  as  by  laws  regulating  suf- 
frage ?  The  Constitution,  in  declaring  that  "  the  United 
States  shall  guarantee  to  every  State  in  the  Union  a  repub- 
lican form  of  government,"  aflirms,  and  secures  the  practical 
observance  of,  the  doctrine  of  the  Declaration  of  Indepen- 
dence, that  "  governments  derive  their  just  powers  from  the 
co7isent  of  the  yoverned.''''  Can  that  be  said  to  be  a  republican 
form  of  government  which  repudiates  this  normal  principle  of 
American  republicanism,  —  which,  instead  of  leaving  tlie 
right  to  govern  with  the  people,  ordains  that  it  shall  be  exer- 
cised by  a  part  only  of  the  people  —  by  men  of  blue  eyes,  or 
yellow  hair,  or  white  skins  only  —  by  clergymen,  or  lawyers, 
or  merchants  —  by  men  of  Saxon  descent,  or  Celtic,  and  no 
others  ?  Is  that  a  republican  form  of  government,  one  resting 
upon  the  consent  of  the  governed,  in  which  Jews,  or  Cath- 
olics, or  Presbyterians,  naturalized  foreigners,  or  Colored 
native  born  citizens,  have  no  voice  ?  Would  it  not  be 
clearly  the  government  of  a  caste,  class,  or  race  —  in  other 
words,  an  aristocracy  ?  Is  there  any  doubt  that  if  a  State 
should  persist  in  maintaining  a  Constitution  which  in  a  vital 
respect  was  anti-republican,  that  excluded  loyal  and  good  citi- 
zens from  the  exercise  of  the  right  of  suffrage  upon  grounds 
of  caste  and  color,  merely,  or  sliould  transfer  political  power 
from  the  majority  to  the  minority,  to  a  few  families,  to  a 
directory  or  dictatorship,  the  exigency  would  arise  in  which 
intervention  would  become  the  immediate  duty  of  the  United 
States  ? 

What  we  understand  to  have  been  the  intention  of  the  Con- 
vention which  formed  the  Constitution,  and  what  we  under- 
stand to  be  the  effect  of  that  instrument,  in  regard  to  elec- 
tions and  suffrage,  is  expressed  in  the  following  propositions : 

1.  The  power  "to  regulate  elections,  including  the  qualifica- 
tions of  electors,  is  left  primarily  with  the  States,  in  the  choice 
of  federal  and  State  officers  alike.     But 

2.  There   are  qualifications   of,  and    limitations    to,  this 


8  THE  POWER  AND  DUTY  OF  CONGRESS 

power.  For  example,  the  States  cannot  prescribe  different 
qualifications  for  electors  of  Representatives  in  Congress  from 
those  of  Representatives  in  the  most  numerous  branch  of  the 
State  Legislatures,  and  these  electors  must  be  in  either  case 
"  the  jjeople  of  the  several  States,"  and  not  portions  or  classes 
of  the  people,  only ;  and  that  whenever  the  cardinal  principle 
of  republican  government  is  violated  by  the  States  in  their 
laws  concerning  the  qualifications  of  electors,  whether  of 
members  of  Congress,  of  electors  of  President  and  Vice  Pres- 
ident, or  of  State  officers  by  whom  the  political  power  of  the 
State  is  to  be  exercised,  and  suffrage  is  limited  to  particular 
classes,  orders,  or  races  of  men.  Congress  has  the  power  to 
modify,  change  and  correct  these  regulations  so  far  as  may  be 
necessary  to  make  them  consistent  with  the  fundamental  idea 
of  a  "  republican  form  of  government," 

In  view  of  the  provisions  of  the  Constitution  already  cited, 
and  of  Sections  2  and  4  of  Article  I.,  we  do  not  see  how  any 
other  construction  is  admissible  or  possible.  Certainly  no 
other  is  consistent  with  the  terms  of  the  Constitution,  its  una- 
voidalDle  implications,  the  necessities  of  the  case,  the  debates 
in  the  several  Conventions  which  acted  upon  it,  and  the 
contemporaneous  expositions  of  the  Federalist.  Sections  2 
and  4  of  Article  I.,  referred  to  above,  are  as  follows : 

Art.  I.  Sec.  2.  The  House  of  Representatives  shall  be 
composed  of  members  chosen  every  second  year  ly  the  people 
of  the  several  States  ;  and  the  electors  in  each  State  shall  have 
the  qualifications  requisite  for  electors  of  the  most  numerous 
branch  of  the  State  Legislature. 

Art.  I.  Sec.  4.  The  times,  places,  and  manner  of  holding 
elections  for  Senators  and  Representatives  shall  be  prescribed 
in  each  State  by  the  Legislature  thereof;  but  the  Congress 
may  at  any  time,  by  law,  make  or  alter  such  regulations, 
except  as  to  the  places  of  choosing  Senators. 

These  sections,  with  those  before  quoted,  embrace  all  the 
provisions  of  the  Constitution  that  touch  the  question  before 
us,  and  we  submit  that  they  fully  bear  out  what  has  been  said 
in  respect  to  the  construction  of  that  instrument  demanded 


IN   RESPECT   TO    SUFFRAGE.  V 

by  its  terms  and  implications.  We  now  propose  to  show  that 
our  statements  in  respect  to  the  testimony  of  the  Federalist, 
and  of  the  delmtes,  are  also  sustained  by  the  record.  In 
these  we  shall  find  it  constantly  assumed  and  uniformly 
affirmed,  that  the  power  over  elections  is  m  the  first  instanee 
in  the  States,  but  that  it  is  subject  to  the  control  and  revision 
of  the  General  Government  (i.  e.  of  Congress)  in  certain 
cases  which  we  have  already  pointed  out.  These  papers  and 
debates  are  all  consistent  with  themselves  and  with  each 
other  upon  this  hypothesis,  but  are  utterly  irreconcilable  with 
any  other. 

Mr.  Madison  says,  in  the  Federalist  —  paper  No.  52  — 
"  The  definition  of  the  rights  of  suffrage  is  justly  regarded  as 
a  fundamental  article  of  republican  government.''^  If  so,  it 
follows  that,  as  the  United  States  is  required  to  guarantee 
republican  governments  to  the  States,  whenever  in  tliis  "  fun- 
damental article  "  of  suffi-age  the  States  have  made  unconsti- 
tutional provisions,  their  work  must  be  corrected  by  the  for- 
mer. No  other  conclusion  seems  possible ;  and  this  is 
entirely  consistent  with  all  the  essential  rights  of  the  States, 
among  which  is  the  right  of  initiating  the  law  in  respect  to 
suffrage.  After  observing  that  the  provisions  of  the  Consti- 
tution will  be  safe  for  the  United  States,  Mr.  Madison  adds, 
"  and  it  cannot  be  feared  the  people  of  the  States  will  alter 
this  part  of  their  Constitutions  in  such  mannei  as  to  abridge 
the  rights  secured  to  them  by  the  federal  Constitution."  What 
were  these  rights  ?  There  were  none  more  important  or  val- 
uable than  that  to  a  republican  government.  Should  a  State 
at  any  time  alter  its  Constitution  so  as  to  abridge  this  right, 
and  make  its  government  anti-republican,  is  it  possible  to  con- 
ceive that  Mr.  Madison  understood  that  tliere  was  no  remedy  ? 

In  paper  No.  57,  by  Mr.  Madison,  we  have  this  remarkable 
language : 

"  Let  me  now  ask,  what  circumstance  there  is  in  the  con- 
stitution of  the  House  of  Representatives  that  violates  the 
principles  of  republican  government,  or  favors  the  elevation  of 


10  THE  POWER  AND  DUTY  OP  CONGRESS 

the  few  on  the  ruins  of  the  many?  Let  me  ask,  whether  every 
circumstance  is  not,  on  the  contrary,  strictly  conibrmablc  to 
these  princii)les,  and  scrupulously  impartial  to  the  rigltts  and 
pretensions  of  every  class  and  description  of  citizens  ?  Who 
are  to  be  the  electors  of  the  federal  representatives  ?  Not  the 
rich,  more  than  the  poor ;  not  the  learned,  more  than  the 
ignorant ;  not  the  haughty  heirs  of  distinguished  names, 
more  than  the  humble  sons  of  obscurity  and  unpropitious  for- 
tune. The  electors  are  to  be  the  great  body  of  the  2J<'ople  of 
the  United  States.  They  are  to  be  the  same  who  exercise  the 
right  in  every  State  of  electing  the  correspondent  branch  of 
the  Legislature  of  the  State." 

The  electors  of  Representatives  in  Congress  and  of  the 
State  Representatives  are  to  be  the  same  persons,  and  they 
will  be  "  the  great  body  of  the  people  of  the  United  States." 
In  the  light  of  this  extract,  can  it  be  doubted  that  a  repub- 
lican government,  as  understood  by  Mr.  Madison,  was  one 
founded  upon  the  people,  and  without  any  aristocratic  distinc- 
tions, or  that  if  the  government  of  any  State  was  otherwise 
founded,  the  power  existed  in  the  general  government  to 
make  it  republican  ? 

The  views  of  Alexander  Hamilton  are  quite  as  explicit  and 
emphatic  as  those  of  Mr.  Madison.  We  make  the  following 
extract  from  the  Federalist^  No.  69  : 

"  It  will,  I  presume,  be  as  readily  conceded,  that  there  were 
only  throe  ways  in  which  this  power  over  elections  could  have 
been  reasonably  organized  ;  that  it  must  either  have  been 
lodged  wholly  in  the  National  Legislature,  or  wholly  in  the 
State  Legislatures,  or  primarily  in  the  latter,  and  ultimately 
in  the  former.  The  last  mode  has  with  reason  been  preferred 
by  the  convention.  They  have  submitted  the  regulation  of 
elections  for  the  federal  government  in  the  frst  instance,  to 
the  local  administrations ;  which,  in  ordinary  cases,  and 
where  no  improper  views  prevail,  may  be  both  more  conven- 
ient and  more  satisfactory ;  but  they  have  reserved  to  the 
natio7ial  authority  a  right  to  interfere,  whenever  extraordinary 
circumstances  might  render  that  interposition  necessary  to  its 
safety. 

Nothing  can  he  more  evident,  than  that  an  exclusive  power 
of  regulating  elections  for  the  national  government,  in  the 


IN   EESPECT  TO   SUFFRAGE.  11 

hands  of  the  State  Legislatures,  woiikl  leave  the  existence  of 
the  Union  entirely  at  their  mercy.  They  could  at  any 
moment  iinnihilate  it,  by  neglecting  to  provide  for  the  choice 
of  persons  to  administer  its  affairs.  It  is  to  little  purpose  to 
say,  that  a  neglect  or  omission  of  this  kind  would  not  be 
likely  to  take  place.  The  constitutional  impossibility  of  the 
thing,  without  an  equivalent  for  the  risk,  is  an  unansweral)lv3 
objection.  Nor  has  any  satisfactory  reason  been  yet  assigned 
for  incurring  that  risk.  The  extravagant  surmises  of  a  dis- 
tempered jealousy  can  never  be  dignified  with  that  character. 
If  we  are  in  humor  to  presume  abuses  of  power,  it  is  as  fair 
to  presume  them  on  the  part  of  the  State  governments  as  on  ' 
the  part  of  the  general  government.  A7id  as  it  is  more  conso- 
nant to  the  rules  of  a  just  theory  to  entrust  the  Union  with  the 
care  of  its  otvn  existence,  than  to  transfer  that  care  to  any  other 
hands  ;  if  abuses  of  ^jotver  are  to  be  hazarded  on  the  one  side  or 
on  the  other,  it  is  more  rational  to  hazard  them  ivhere  the  'poioer 
ivould  naturally  be  placed,  than  ivhere  it  would  unnaturally  be 
placed.^' 

It  will  not  fail  to  be  observed  how  impossible  it  is  to  recon- 
cile some  of  the  most  weighty  of  the  foregoing  sentences  with 
the  idea  that  in  no  case  has  Congress  power  over  the  question 
of  suffrage.  Nor  will  it  fail  to  be  seen  how  easily  all  the  lan- 
guage asserting  or  implying  the  existence  of  this  power  in  the 
States  may  be  harmonized  with  the  authority  of  Congress  as 
herein  claimed  to  exist  —  to  wit  —  to  revise  and  control  the 
action  of  the  States  in  respect  to  elections  and  suffrage  when- 
ever it  may  be  in  derogation  of  the  requirements  of  the  Con- 
stitution of  the  United  States. 

To  the  authority  of  the  quotations  already  made  we  have 
to  add  one  of  singular  force  and  pertinency,  and  one,  which, 
we  submit,  ought  to  close  all  controversy  on  this  question.  It 
is  from  a  speech  by  Mr.  Madison  in  the  Virginia  Convention, 
when  the  adoption  of  the  federal  Constitution  was  being  con- 
sidered by  that  body.  We  quote  from  page  261  of  the 
Debates.  Mr.  Monroe  wished  that  the  honorable  gentleman 
(Mr.  Madison),  who  had  been  in  the  Federal  Convention, 
would  give  information  respecting  the  clause  concerning  elec- 
tions.    Mr.  Madison  having  stated  that  the  reason  for  except- 


12  THE  POWER  AND  DUTY  OF  CONGRESS 

iiig  the  place  of  choosing  Senators  was,  that  otherwise  the 
general  government  might  compel  tlic  State  Legislatures  to 
meet  in  a  different  place  than  that  of  their  usual  sessions, 
then  added : 

"  "With  respect  to  the  other  point,  it  was  thought  that  the 
regulation  of  time,  place  and  manner  of  electing  the  Repre- 
sentatives should  be  uniform  throughout  the  continent.  Some 
States  might  regulate  the  elections  on  the  principles  of  equal- 
ity, and  others  might  regulate  them  otherwise.  The  diversity 
would  he  obviously  unjust.  Elections  are  regulated  tmequally 
now  in  some  of  the  States,  particularly  in  South  Carolina, 
with  respect  to  Charleston,  which  is  represented  by  thirty 
members.  Should  the  jjeople  of  any  State  hy  any  means  he 
deprived  of  the  right  OF  suffrage,  it  was  propefi'  that  it  shoidd 
he  remedied  hy  the  general  government.  It  was  found  impossi- 
ble to  fix  the  time,  place  and  manner  of  the  election  of  Rep- 
resentatives in  the  Constitution.  It  was  found  necessary  to 
leave  the  regulation  of  these  in  the  first  place  to  the  State 
governments,  as  being  best  acquainted  with  the  situation  of 
the  people,  subject  to  the  control  of  the  general  govern- 
ment, in  order  to  enable  it  to  produce  uniformity  and  prevent 
its  own  dissolution.  And  considering  the  State  government 
and  general  government  as  different  bodies,  acting  in  different 
and  independent  capacities,  it  was  thought  the  particidar  reg- 
ulations should  be  submitted  to  the  former,  and  the  genei-al 
regulations  to  the  latter.  Were  they  exclusively  under  the 
control  of  the  State  governments,  the  general  government 
might  easily  be  dissolved.  But  if  they  he  regulated  properly 
by  the  State  Legislatures,  the  Congressional  control  will  very 
probably  never  be  exercised." 

The  debates  in  the  conventions  of  other  States  furnish  very 
conclusive  evidence  that  Mr.  Madison's  interpretation,  in  the 
Virginia  Convention,  of  the  Constitution,  was  everywhere 
accepted  as  the  true  one. 

In  the  Massachusetts  Convention,  Mr.  Cabot  said : 

"  A  State  Legislature,  under  the  influence  of  their  Senators 
who  would  have  their  fullest  confidence,  or  under  the  influ- 
ence of  ambitious  or  popular  characters,  or  in  times  of  popu- 
lar commotion,  and  when  faction  and  spirit  run  high,  would 
introduce  such  regulations  as  would  render  the  rights  of  the 


IN   RESPECT  TO   SUFFRAGE. 

people  insecure  and  of  little  ralne.  They  might  make  an 
miequal  and  partial  division  of  the  States  into  districts  for  the 
election  of  Representatives,  or  they  might  even  disqualify  one- 
third  of  the  electors.  Without  these  powers  in  Congress  the 
people  can  have  no  remedy.  But  the  fourth  section  provides 
a  remedy,  a  controlling  power  in  a  Legislature  composed  of 
Senators  and  Representatives  of  twelve  States,  without  the 
infivience  of  our  commotions  and  factions,  who  will  hear 
impartially,  and  preserve  and  restore  to  the  peoj^le  their  equal 
and  sacred  rights  of  election." 

The  words  which  are  italicised  show  that  Mr.  Cabot  under- 
stood the  authority  of  Congress  to  extend  to  the  qualifications 
of  electors,  as  well  as  to  the  time,  place  and  mere  details  of 
elections. 

In  the  New  York  Convention,  Hon.  Mr.  Morris  suggested 
"  that,  so  far  as  the  people,  distinct  from  their  Legislatures, 
were  concerned  in  the  operation  of  the  Constitution,  it  was 
absolutely  necessary  that  the  existence  of  the  General  Gov- 
ernment should  not  depend  for  a  moment  on  the  will  of  the 
State  Legislatures.  The  power  of  perpetuating  the  govern- 
ment ought  to  belong  to  their  federal  Representatives  ;  other- 
wise, the  rights  of  the  people  would  be  essentially  abridged.'* 

In  the  Convention  of  North  Carolina,  Governor  Johnston 
said:  ^^  I  conceive  that  Congress  will  have  no  other  power  than 
the  States  had.  The  States,  with  regard  to  elections,  must  be 
governed  by  the  articles  of  the  Constitution ;  so  must  Con- 
gress." 

Mr.  Davie,  in  the  same  Convention,  observed  :  "  It  would 
have  been  a  solecism  to  have  a  government  without  any  means 
of  self-preservation.  The  Confederation  is  the  only  instance 
of  a  government  without  such  means,  and  is  a  nerveless  sys- 
tem, as  inadequate  to  every  purpose  of  government  as  it  is  to 
the  security  of  the  liberties  of  the  people  of  America.  When 
the  councils  of  America  have  this  power  over  elections,  they 
can,  in  spite  of  any  faction  in  any  particular  State,  give  the 
people  a  representation." 

Quoting  Montesquieu,  Mr.  Wilson  of  Pennsylvania,  in  the 
Convention  of  that  State,  Dec.  4,  1787,  said :  "  In  a  democ- 


14  THE  POWER  AND  DUTY  OF  CONGRESS 

racy  the  people  are  in  some  respects  the  sovereign,  and  in 
others  the  subject.  There  can  be  no  exercise  of  sovereignty 
but  by  their  suffrages,  which  are  tlieir  own  will.  Now,  the 
sovereigii's  will  is  the  sovereign  himself.  The  laws,  there- 
fore, which  establish  the  right  of  suffrage  are  fundamental  to 
this  government.  And,  indeed,  it  is  as  important  to  regulate 
in  a  republic  in  what  manner,  b^/  whom,  to  whom,  and  con- 
cerning what,  suffrages  are  to  be  given,  as  it  is  in  a  monarchy 
to  know  who  is  the  prince,  and  after  what  manner  he  ought 
to  govern." 

And  then  he  added :  "  In  this  system  it  is  declared  that  the 
electors  in  each  State  shall  have  the  qualifications  requisite 
for  electors  of  tlie  most  numerous  branch  of  the  State  Legis- 
lature. This  being  made  the  criterion  of  the  right  of  suffrage, 
it  is  consequently  secured,  because  the  same  Constitution 
guarantees  to  every  State  in  the  Union  a  republican  form  of 
government.     The   right   op   suffrage   is   fundamental   to 

REPUBLICS." 

If  the  power  which  we  claim  to  be  in  tlie  Constitution  is 
really  to  be  found  there,  it  seems  to  us  it  would  be  criminal 
to  permit  it  to  be  retrenched  or  abnegated,  as  it  will  be  prac- 
tically if  it  is  not  exercised  by  Congress  at  this  time.  Exer- 
cised, the  country  will  have  peace,  harmony,  content  —  not 
exercised,  a  half  century  may  elapse  before  amendments  can 
be  carried  in  all  the  State  Constitutions,  and  strifes,  conten- 
tions, and  reconstruction  postponed,  will  be  the  inevitable 
result. 

If  this  power  is  not  in  the  Constitution,  its  framers  design- 
edly omitted  to  provide  for  the  preservation  of  the  nation 
against  a  danger  which  they  foresaw  and  discussed,  as  the 
extracts  we  have  copied  clearly  show.  If  it  is  in  the  Consti- 
tution, it  was  placed  there  for  precisely  such  an  exigency  as 
the  present.  That  it  is  a  wise  and  necessary  power,  events 
that  are  passing  before  us  make  certain.  Shall  this  just  and 
wholesome  power  be  permitted  to  go  unexercised,  because, 
possibly,  the  States  may  by  their  own  acts,  at  some  future 
time,  remove  the  necessity  for  its  exercise ;  or  because,  here- 


IN   RESPECT   TO   SUFFRAG'3.  15 

after,  in  ten  years  or  twenty  years,  an  amendment  may  be 
adopted,  reaffirming,  in  express  terms,  the  power  already 
Tested  in  Congress,  by  the  Constitution  as  it  is  ? 

Remembering  the  fact  that  there  are  in  every  community 
men  who  opi)ose  all  organic  changes  extending  the  suffrage  ; 
looking  to  Kentucky  and  Maryland ;  observing  the  condition 
of  things  throughout  the  South,  no  wise  man  will  believe  that 
just  and  republican  sutTrage  can  be  established  throughout 
that  portion  of  our  country,  without  the  intervention  of  Con- 
gress, for  twenty  years  to  come.  The  damage  to  that  section, 
the  loss  to  the  whole  country,  in  all  its  business  and  material 
relations,  that  will  ensue  in  the  absence  of  such  intervention 

—  the  wrongs  that  will  be  committed,  the  cruelties  perpe- 
trated, the  seditions  fomented,  the  insurrections  inaugurated, 

—  the  fierce  election  struggles  that  will  be  kept  up  for  years, 
in  all  the  States,  upon  questions  touching  the  very  existence 
of  the  government,  and  so  of  the  most  dangerous  character  — 
the  demoralizations  that  will  extend  through  all  our  political 
organizations,  and  the  popular  weariness  and  disgust  which 
will  at  length  succeed,  preparing  the  way  for  collapse  and 
ruin,  admonish  us  with  terrible  emphasis  of  the  blunder  that 
will  be  made  if  we  neglect  to  perform  the  great  duty  of  the 

HOUR. 

Although  the  facts  and  considerations  presented  in  this 
paper,  and  which  constitute  its  affirmative  argument,  seem  to 
furnish  a  complete  answer  to  the  objections  that  have  been 
raised  to  the  theory  herein  maintained,  it  may  not  be  unprof- 
itable to  examine  some  of  the  principal  of  these  objections  in 
detail.  They  have  been  summed  up,  and  stated  with  great 
clearness  and  ability,  by  a  distinguished  Senator  from  the 
State  of  Illinois  —  Mr.  Trumbull.  He  says  that  "  the  power 
of  Congress  to  regulate  suffrage  in  the  States  cannot  be 
derived  from  the  clause  whicii  requires  that  '  the  United 
States  guarantee  to  every  vState  in  this  Union  a  republican 
form  of  government,'  because  such  a  construction  would  be 
inconsistent  with  the  clause  which  leaves  each  State  to  fix  the 
qualifications  of  electors  of  the  most  numerous  branch  of  its 
Legislature." 


16  THE  POWER  AND  DUTY  OF  CONGRESS 

We  do  not  perceive  the  inconsistency.  Each  State  is  to  fix 
the  qualifications  of  electors  of  the  most  numerous  branch  of  its 
Legislature,  and,  in  so  doing,  it  fixes  the  qualifications  of  elec- 
tors of  Representatives  in  Congress.  But  the  qualifications  of 
electors  for  members  of  the  Legislature  (and  of  Representatives 
in  Congress  as  well),  must  be  such  as  are  consistent  with  the 
republican  theory.  The  Constitution  provides  that  in  the 
several  States  the  qualifications  of  electors  of  members  of 
Congress  and  of  the  State  Legislatures  shall  be  the  same  ;  but 
it  nowhere  declares  in  terms  or  by  implication,  that  the  quali- 
fications of  these  electors  shall  be  such  only  as  the  States  shall 
prescribe,  no  matter  how  unconstitutional  and  anti-republican 
they  may  be.  The  State  may  unquestionably,  in  the  first 
instance,  prescribe  the  qualifications  of  electors  of  members 
of  the  Legislature ;  but  if  they  are  in  derogation  of  the 
requirement  that  they  shall  be  consistent  with  a  republican 
government.  Congress  must,  and,  if  it  performs  its  duty,  will, 
revise  and  regulate  them  so  as  to  bring  them  in  harmony  with 
this  form  of  government  in  contradistinction  from  an  oligar- 
chical, or  any  other. 

The  learned  Senator  also  insists  that  this  power  does  not 
exist,  for  the  "  further  reason  that  a  republican  government 
does  not  depend  upon  the  number  of  people  who  participate 
in  the  primary  election  of  Representatives."  It  does,  how- 
ever, in  our  American  idea,  depend  upon  the  fact  whether 
any  of  the  people  are  excluded  upon  grounds  of  race  or  color, 
or  upon  any  grounds  which  necessarily  involve  the  idea  of  an 
aristocracy  or  oligarchy.  Is  this  denied  ?  Then,  if  a  major- 
ity of  the  voters  of  Rhode  Island,  for  instance,  in  the  course 
of  ten  years  should  be  Irishmen,  and  should  change  the  Con- 
stitution of  that  State  so  as  to  provide  that  only  persons  of 
Irish  descent  should  be  electors  of  members  of  the  Legisla- 
ture, and  of  other  officers,  it  would  nevertheless  be  a  repub- 
lican government,  and  Congress  would  have  no  just  power  to 
intervene  and  secure  the  right  of  suffrage  to  the  other  races. 
If  the  colored  men  of  South  Carolina  should  so  alter  the  Con- 
stitution of  that  State  as  to  exclude,  in  terms,  all  white  men 


IN  KESPECT   TO   SUFFRAGE.  17 

from  the  ballot,  still,  if  Judge  Trumbull  is  right,  the  govern- 
ment is  republican,  and  Congress  has  no  power  in  the  pre- 
mises. Or,  if  New  Mexico,  when  she  shall  have  come  into 
the  Union  as  a  State,  shall  declare  in  an  amended  Constitu- 
tion that  only  descendants  of  Spaniards  or  Indians  shall  vote, 
yet,  notwithstanding  all  other  persons  are  cut  off,  her  State 
government  is  in  conformity  to  the  Constitution  of  the  United 
States !  To  this  complexion  does  the  Senator's  argument 
come.  Or,  suppose  the  people  of  Utah  (when  that  territory 
shall  have  been  admitted  as  a  State)  should  change  their 
Constitution  so  as  to  permit  only  Mormons  to  vote  in  the 
State  and  other  elections,  will  those  who  agree  with  Mr. 
Trumbull  contend  that  Congress  has  no  authority  to  interpose 
and  correct  the  abuse  ?  They  must,  if  they  endorse  the  doc- 
trine which  he  has  endeavored  to  maintain. 

But  it  is  contended  that  "  the  Constitution  is  to  be  inter- 
preted a^  it  was  understood  by  those  who  made  it,  and  it  will 
not  be  denied  that  at  that  time  suffrage  was  much  more 
restricted  in  all  the  States  than  it  is  in  any  of  them  now." 
So  far  from  this  being  true,  there  was  no  restriction  at  that 
time  in  more  than  two  of  the  States  founded  upon  race,  class 
or  color,  or  on  any  distinction  involving  an  absolute  and  insur- 
mountable inequality  of  rights.  There  were  then,  as  there 
are  now  in  some  of  the  States,  restrictions  founded  upon 
property  qualifications  and  the  like,  which  it  was  open  to  all 
citizens  to  avoid  or  overcome,  but  there  were  no  others,  except 
in  two  States  only.  It  was  at  that  time  the  general,  and  all 
but  universal  opinion,  that  all  male  citizens,  whether  native 
born  or  naturalized,  white  or  black,  were  (certain  conditions 
applicable  to  all  men  in  respect  to  property,  age  or  residence 
being  complied  with)  entitled  to  suffrage  —  and  in  point  of 
fact,  as  before  stated,  in  nearly  all  the  States  at  that  time  col- 
ored men  possessing  the  qualifications  required  of  all  men, 
white  and  black  alike,  did  vote  in  all  elections  in  which  white 
men  voted. 

Colored  men  are  now  'citizens,  and  if  they  are  to  enjoy  the 
rights  which  were  understood  to  be  secured  to  citizens  by  the 


18  THE  PO"VSrER   AND  DUTY   QF  CONGRESS 

Constitution,  they  must  be  allowed  to  vote  on  precisely  the 
same  terms  and  conditions  as  other  citizens.  Those  who 
made  the  Constitution  must  have  understood  it  to  secure 
equal  civil  and  political  rights  to  all  citizens.  This  equality 
of  right  inhered  in  the  term  "  republican  government."  As 
then  understood,  it  was  regarded  as  the  very  basis,  the  crucial 
test  of  such  a  government.  While  the  framers  of  the  Consti- 
tution understood  that  suffrage  would  not  be  exercised  by 
females,  minors  nor  slaves,  they  did  not  mean  that  an  acknowl- 
edged citizen  of  the  United  States  should  be  deprived  of  it 
simply  because  of  his  color  or  race. 

At  the  adoption  of  the  Constitution,  and  for  a  considerable 
period  afterwards,  slavery,  and  not  color  or  race,,  excluded 
the  negro  from  the  exercise  of  political  rights.  Of  course 
slaves  were  not  permitted  to  vote,  and  in  the  lapse  of  time,  as 
the  purpose  of  extending  and  perpetuating  slavery  was  devel- 
oped and  strengthened,  civil  and  political  rights  were  gradu- 
ally withdrawn  from  the  colored  race  until  it  came  to  be  held 
by  the  Chi«f  Justice  of  the  Supreme  Court  ot  the  United 
States,  in  the  baleful  time  of  Mr.  Buchanan's  administration, 
that  even  free  men  of  color  had  "  no  rights  which  white  men. 
were  bound  to  respect."  The  views  of  those  who  deny  that 
our  government  was  built  upon  the  granite  of  human  rights 
have  their  foundation  in  the  demoralized  condition  of  the  pub- 
lic sentiment  during  the  gloomy  days  of  slavery  domination. 
They  belong  to  that  period  rather  than  to  the  healthier  ones 
which  existed  at  the  formation  of  the  Constitution,  and  suc- 
ceeded the  abolition  of  slavery.  At  the  earlier,  as  at  the  later 
period,  tlie  light  fell  directly  and  clearly  upon  that  instru- 
ment, while  in  the  middle  time  it  fell  obliquely  and  through 
mists. 

From  the  fact  that,  during  the  dark  age  of  the  republic, 
States  fell  into  tiie  practice  of  withholding  the  right  of  suf- 
frage from  colored  freemen,  and  Congress  failed  from  year-  to 
year  to  correct  this  abuse,  leaving  its  highest  duty  imper- 
formed,  and  permitting  free  States,  as  well  as  slave  States,  to 
incorporate  in  their  Constitutions  and  laws  provisions  at  war 


IN   RESPECT   TO   SUFFRAiJE.  19 

with  the  Federal  Constitution,  and  which  transformed  them 
in  theory  and  in  fact  into  oligarchies,  no  argument  can  he 
drawn  for  the  justification  or  continuance  of  such  practice. 

In  the  reactionary  epoch  that  preceded  the  great  uprising 
of  1860,  it  was  denounced  by  the  dominant  political  party  of 
the  country  as  a  pernicious  and  almost  treasonable  heresy  to 
maintain  that  Congress  had  authority  to  exclude  slavery  from 
the  territories,  although  the  Supreme  Court,  in  the  days  of 
Marshall,  had  decided  that  it  possessed  plenary  legislative 
power  over  them ;  and  the  controlling  majority  of  the  party, 
backed  in  effect  by  the  opinion  of  the  Supreme  Court,  went  so 
far  as  to  iassert  that  the  Constitution  of  the  United  States, 
ex  propria  vigor e^  carried  slavery  into  every  State  in  the 
Union.  As  well  might  it  be  said  that  Congress  had  no  right 
to  overrule  these  doctrines,  and  reverse  the  legislation  founded 
upon  them,  as  that  it  cannot  now  legislate,  in  the  true  spirit 
of  the  Constitution,  and  under  the  powers  expressly  dele- 
gated, in  regard  to  suffrage  ;  or,  in  other  words,  to  carry  into 
effect  the  duty  imposed  upon  it  to  guaranty  to  the  several 
States  a  republican  form  of  government. 

The  power  and  duty  of  Congress  to  prevent  the  extension 
of  slavery  was  no  more  clear  to  that  body  in  1862,  than  its 
power  and  duty  to  enact  that  no  State  in  its  regulations  con- 
cerning elections  shall  deprive  citizens  of  the  United  States  of 
the  right  of  suffrage,  for  the  single  reason  that  they  are  of  a 
particular  color  or  race,  is  now  to  the  great  majority  of  the 
loyal  and  intelligent  men  of  the  United  States.  In  the  month 
of  February,  1867,  the  Legislature  of  the  State  of  Maine,  by 
the  unanimous  vote  of  its  Republican  members  (who  com- 
prised more  than  nine-tenths  of  that  body),  passed  the  follow- 
ing resolutions : 

1.  That  the  permanent  peace  of  the  nation  can  be  secured 
only  by  a  firm  adherence  to  the  self-evident  truth  that  all  men 
are  created  equal. 

2.  Tliat  political  power  being  an  inherent  right  of  the  citi- 
zen, impartial  suffrage  should  be  the  uniform  rule  of  all  the 
States  of  the  Union,  either  by  the  authority  already  possessed 


20  THE  POWER  AND  DUTY  OF  CONGRESS 

hy  Congress,  or  by  the  necessary  amendment  of  the  Constitu- 
tion of  the  United  States. 

These  resolutions  were  drawn  and  reported  by  one  of  the 
ablest  lawyers  in  the  State  or  country,  and  expressed  the 
opinions  of  the  Republicans  of  Maine,  as  well  as  of  the  Legis- 
lature which  passed  them.  We  have  no  reason  to  believe 
that  the  opinions  of  the  Republicans  of  other  States  differ  on 
this  question  from  those  of  their  brethren  in  Maine. 

It  may  be  said  that  the  Republican  Convention  at  Chicago, 
in  June,  1868,  endorsed  a  different  doctrine.  The  resolution 
of  that  Convention  upon  the  subject  of  suffrage  simply 
declared  that  in  the  loyal  States  the  question  of  suffrage  prop- 
erly belongs  to  the  people  of  those  States.  That  is  what  we 
say.  And  we  say,  further,  it  properly  belongs  to  the  people 
of  all  the  States,  subject  only  to  the  power  of  Congress  to 
take  care  that  it  is  founded  upon  constitutional  principles. 
Congress  may  not  be  expected  to  go  to  work  regardless  of  the 
action  of  the  States,  and  pass  laws  in  respect  to  suffrage, 
arranging  all  their  details  and  conditions.  Nevertheless,  it 
may  establish  such  general  provisions  or  rules  on  the  subject  as 
may  be  necessary  to  secure  a  practical  recognition  by  the  States 
of  the  cardinal  principle  of  impartial,  republican  suffrage.  And 
this  in  no  wise  conflicts  with  the  doctrine  of  the  Convention 
at  Chicago. 

It  will  be  observed  that  in  what  we  have  said  no  reference 
has  been  made  to  the  provisions  of  the  14th  amendment  of 
tlie  Constitution.  And  even  if  the  Chicago  Convention  had 
gone  so  far  as  to  declare  in  terms  that  the  exclusive  power 
over  suffrage  and  elections  was,  at  that  time,  in  the  States,  and 
that  they  might  limit  the  right  of  voting  to  one-twentieth  part 
of  the  people  thereof,  respectively,  it  would  still  be  open  to  its 
members  to  insist  noiv  upon  the  intervention  of  Congress, 
because  by  the  14th  amendment  (which  was  adopted  only  in 
July  last)  the  authority  and  duty  of  Congress  is  very  clearly 
expressed,  or,  as  we  should  say,  reaffirmed. 

That  amendment,  so  far  as  it  relates  to  the  question  before 
us,  is  as  follows  : 


IN   RESPECT  TO   SUFFRAGE.  21 

Sec.  1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States,  and  of  the  State  wherein  they  reside.  No 
State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States  ;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

See.  5.  Congress  shall  have  power  to  enforce,  by  appropri- 
ate legislation,  the  provisions  of  this  article. 

We  have  seen  that  Mr.  Madison  regarded  the  "  rights  of 
suffrage  "  as  a  "  fundamental  article  of  a  republican  govern- 
ment," and  as  "  secured  to  the  people  by  the  Federal  Consti- 
tution," and  that  at  the  time  of  the  adoption  of  the  Constitu- 
tion the  right  of  suffrage  was,  all  but  universally,  regarded  as 
a  right  of  which  the  citizen  could  not  be  "  abridged."  Mr. 
Wilson  said,  in  the  Pennsylvania  Convention,  "  the  right  of 
suffrage  is  fundamental  to  republics."  Can  that  be  a  repub- 
lican government  of  which  a  male  citizen  of  twenty-one  years 
of  age,  and  unaccused  of  crime,  is  deprived  of  the  right  of 
suffrage  simply  because  he  is  of  a  Celtic,  a  Teutonic,  or  an 
African  race  ?  And  if  he  is,  is  he  not  "  abridged  "  of  one  of 
his  dearest  "  privileges  "  ? 

Sec.  2  of  this  amendment  bears  upon  this  question  so  far 
as  to  hold  out  inducements  to  the  States  to  correct  their  laws 
in  respect  to  suffrage,  by  saying,  in  effect,  that  until  they  do 
so,  or  they  shall  be  corrected  by  Congress,  their  representa- 
tion in  Congress  shall  be  abridged.  But  it  does  not  imply, 
and  we  learn  from  the  debates  in  Congress  that  it  was  not 
intended  to  imply,  the  uncontrolled  right  of  the  States  to  con- 
fine suffrage  to  a  portion  of  its  citizens.  Senators  and  Rep- 
resentatives alike  denounced  this  as  an  unwarranted  implica- 
tion. It  only  placed  an  additional  burden  or  punishment 
upon  an  illegal  act.  It  held  out  a  new  motive  to  the  States 
to  do  right  themselves,  and  so  obviate  the  necessity  of  Con- 
gressional interference. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 
BERKELEY 

Return  to  desk  from  which  borrowed. 
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l^Apr'60Vr 

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JAN  8    1963 

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THE  UNIVERSITY  OF  CAUFORNIA  UBRARY 


